The People Must Own The Land, Not The State Or A Few!


By Masiphula M. Mbongwa

INTRODUCTION
 
President Cyril Ramaphosa announced, at the end of its National Executive Committee Meeting on July 31, 2018, that the African National Congress (ANC) shall amend section 25 of the Constitution in line with National Conference resolution of the ANC in December 2017. 
 
He stated that the land sector - particularly land reform - has not performed well, with studies indicating that land reform is slow and is laden with incompetence, incoherence, corruption and is captured by vested interests. 
 
He argued that years of colonial and apartheid land injustice – the original sin – must be healed by the people of South Africa. This is ordered to ensure equitable access to housing, means of production and recreation. There is no doubt that extending landownership to all the people shall bring lasting peace, the eradication of poverty, unemployment and inequality. However, it must be noted that land reform shall be conducted in an orderly manner; without arbitrary land grabs; and that there shall be no disruption to food production, or threat to food security or impairment to investment, or economic growth. 
 
Together with the EFF, the ANC sponsored a motion in Parliament on 27 February 2018 to amend section 25 of the Constitution to expropriate land without compensation. Parliament set itself the task to democratically change the ownership of land. This was followed by more than three months, where people from all walks of life across South Africa made oral testimonies to a Parliamentary Committee on the amendment of section 25. 
 
We enjoin President Cyril Ramaphosa in this article to amend section 25 to extend landownership to all the people of South Africa in an orderly manner, without disrupting food production, food security and the economy. 
 
We shall use the South African Constitution itself as the most authoritative document to argue for the need to amend specific subsections of section 25 on the five issues of land ownership, land rights, land administration commission, land reform agency, and economic rents. We shall then present amendment proposals to each of these areas. And all the amendment proposals shall be additions to the existing text of section 25, except one deletion. 

Land reform protests
 
LANDOWNERSHIP
 
Who owns South Africa? This question is answered in the preamble: South Africa belongs to all who live in it, united in diversity. Landownership by the people shall reconnect them to their factor of production that was unlawfully expropriated from them. It shall restore their dignity to govern the land of their forefathers by correcting the unequal distribution of land, land tenure insecurity, and land restitution; to re-join and make history, remake the property market, production and exchange. However, that is not explicit in section 25. 
 
We come from a country that was a European settler colony, White South Africa, which lived side by side with its African colonised people who were confined to tribal reserves, white commercial farms and black urban townships. It is imperative that section 25 should be explicit on this from the onset. 
 
PROPOSED LANDOWNERSHIP AMENDMENT 
 
We propose: 
 
“Land in South Africa belongs to the people of South Africa.” 
 
LAND RIGHTS
 
Subsection 6 directed Parliament to pass legislation to strengthen the land rights of all the people of South Africa, especially those rights which were unsecured by past unjust laws. The Extension of Security of Tenure Act and the Interim Protection of Informal Rights Acts all misunderstood that constitutional injunction and in practice, proved inadequate to stop farm evictions of farm workers from commercial farms, land rights violation for communities in communal areas and provision of decent settlement in informal urban areas. The required Green Paper on Land Tenure only came in 2011. 
 
Considering the above experience, it is essential that section 25 should provide explicit basic land rights for all so that the past injustices do not continue. Moreover, the amendment must lay the foundations for a democratic society, legal protection of all and the improvement of the quality of life for all.  
 
PROPOSED LAND RIGHTS AMENDMENT
 
We propose:

Everyone has the right –
  • to have access of adequate land for housing, production, and recreation;
  • to have protection from eviction from land and building without consent and provision for alternative land or shelter;
  • to appropriate the property created from land with one’s labour and capital; 
  • to share and benefit from economic rent, and;
  • to have access to just and effective land administration systems, including –  land tenure; land valuation, land survey, land development, land cadastre information; and land rights dispute settlement mechanism
LAND ADMINISTRATION COMMISSION
 
From the beginning, the then Department of Land Affairs did not to fully understand the content of land administration systems as being distinct, different and, at the same time, indispensable to land reform. Components of land administration functions - deeds registry, land surveying and physical planning – were faced with their inherited challenges of rationalising fourteen land administration systems with over 125 legislations into a single national land administration system in addition to challenges to support delivery of land reform programmes; and challenges to support socioeconomic reconstruction and development.
 
Underrated and misunderstood, these land administration functions underperformed with the 1995 Land Administration Act, which transferred limited powers from national to provinces rather than the full suite of fit-for-purpose land administration systems. The Spatial and Land Use Management Act of 2013 is saddled with capacity problems in the Department and municipalities; faces stiff opposition from traditional leaders and is subject to turf wars about where to locate the land use and spatial planning land administration functions. Treasury Tax Committees have taken more than two decades to produce an April 2018 Report that calls for the introduction of land tax and reworking of the Municipal Property Rates to meet the land tax task. The Land Management Commission Bill failed to make it through Cabinet because of Departmental turf wars. Growing informal settlements, farm evictions and land invasions are proof of the failure of the land administration systems in the country.
 
We are now better informed about land administration systems, thanks to the African Union’s Land Policy Centre in Addis Ababa, which assists African countries to understand the distinction and interlinkages between land administration systems and land reform programmes. 

South Africa is part of the AU’s Southern African region that enshrines national land administration systems in their Constitutions. Section 25 must incorporate this new insight on land administration systems and be explicit about the critical role to land reform and sustainable socioeconomic development. 
 
PROPOSED LAND ADMINISTRATION COMMISSION AMENDMENT
 
We propose: 
 
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis, having regard to all relevant circumstances, including –
 
(a)    Parliament to pass an act to establish a single national Land Administration Commission.
 
LAND REFORM AGENCY
 
The fact that the Land Reform Programme of the Restitution of Land Rights has a dedicated Land Restitution Commission is strong evidence why the other two land reform programmes of land tenure reform and land redistribution have fared relatively poor. They do not have their respective dedicated entities like land restitution. 
 
Land Reform Programmes, by way of general extension, are unlikely to perform relatively well because they do not have a dedicated land reform agency like the land restitution commission. This conclusion is supported by evidence from most of the countries in the world where land reform is undertaken on a significant scale. The lesson is measured must always be taken to ensure that there are uniformity, coherence and consistency within the components of the land reform programme. 
 
PROPOSED LAND REFORM AGENCY AMENDMENT
 
We propose: 
 
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis, having regard to all relevant circumstances, including –
 
  • Parliaments pass an act to establish a single national land reform agency.
ECONOMIC RENT
 
Section 25(3) presents a just and equitable economic framework that strikes a balance between the interests of affected interests against the public interest – regarding the amount, time and manner of payment - in the event of expropriation of property. 
 
In addition, It seeks to recreate the entire South African economy, its markets, its sectors, industries, its basic structure, participants, operations and direction. The public interest is front and centre for land reform and as a result, the people and the producers of wealth must share in the country’s wealth. It echoes Mandela, in 1956, that monopoly industries, financial institutions and real estate sectors are not entitled economic rent. They are value extractors. And that economic rent must go to the people and productive sectors of the economy.
 
Hong and Brubaker tell us that a land parcel has four values and that only one of those values is due to private landowners’ profit from their investments. The rest of land values are due to population growth and economic development, public infrastructural investment and land use regulations, and intrinsic land value due to its fertility or good location – thus all due to the people.
 
The total property market value (land and buildings) of section 25(3) at 2017 prices was R8 trillions according to the SA Property Owners Association. That is 500% more than the South African gross domestic product! We also know that there is about R4 trillion lying used in the banks amidst 37% unemployment rate in the country. This is not accidental. Idle capital always has an unemployed labour force as its direct mirror image. 
 
However, section 25(3) does not direct the state – the public trustee of the people, the landowners and land value creators - to collect in full those economic rents into a land fund for spent on land reform, settlement, and land development in the public interest. It also does not direct the state on what to do about value extractors that Prof Mariana Mazzucato says masquerade like value creators in the economy. Nor is there a directive to the state about what to do about capital, land and properties that are hoarded, unused speculatively to extract more unearned value. 
 
PROPOSED ECONOMIC RENT AMENDMENT
 
We propose:
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis, having regard to all relevant circumstances, including –

  • to collect– landholding fees; land values generated by direct state investment, subsidies and services; land values due to population growth and economic development;
  • to deposit collected land values into a fund to enable the realisation of land, water and related reform and to redress the results of past racial discriminatio
  •  to expropriate without compensation and reallocate land – 
  • not used according to its designated land use; used for speculation, rent-seeking and unproductive economic activities; and acquired by illicit means.
Masiphula M. Mbongwa is the Special ministerial Advisor to the Minister of Water and Sanitation. Views expressed in this article are personal and do not represent the views of the Minister, the Department of Water and Sanitation or the ANC.

-JP

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